Talking transgender: the border between offence and vilification

Law and Religion Australia’s Neil Foster has reported on a case in the ACT’s Appeals Tribunal that attempts to find the boundary between offence and vilification in adjudicating complaints about a vigorous social media debate.

The case in the Appeal Tribunal in the ACT involved analysing a string of critical comments about a transgender person. “Is it unlawful to say that ‘a trans woman is a man’? Not according to the Appeal Tribunal in the Rep decision,” Foster reports.

For the ACT tribunal to draw a boundary between “vilification” and “offence” is important Foster believes could be influential in other jurisdictions. In most Australian anti-discrimination law, the bar is set between offence and vilification.

For example, the ACT Discrimination Act 1991 s 67A under the heading “unlawful vilification” says, “It is unlawful for a person to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of a person or group of people on the ground of any of the following, other than in private:..” and then listing protected characteristics including transgender.

The act has the normal exemptions for fair reporting, which we rely on, as did Foster. We will discuss disrespectful comments here that we would not allow on an Eternity thread.

The tribunal found that some comments found by an earlier tribunal to be unlawful were not. They included this sarcastic example “I apologise that Bridget [Clinch, the respondent in the appeal who identifies as a transgender woman] has been given the impression by this system that his views about himself must be upheld by others at all times. It is evident that under capitalism, ‘human rights’ means white male rights. It is not Bridget who has been victimised here but who has manipulated a system already constructed in his favour.”

The Tribunal commented, “we think that stating that Ms Clinch is a man who has not been victimised but has manipulated the system is offensive and insulting, but it does not meet the test of inciting hatred etc. This post also raises the issue of whether it falls within the exception for reasonable and honest discussion of transgender issues. In our view, there is a real issue as to whether this is vilification … On our analysis … it is not vilification.”

The tribunal discussed the view of the two sides in the case. One side argued that calling a trans woman a man could never be vilification. The other “seemed to argue it was always vilification.”

The tribunal formed a view that sits somewhere in the middle. “In particular, where the words indicate that because of the protected attribute, a person is inherently inferior, a threat or a criminal, the issue of vilification will arise.

“Words directed at the physical attributes of trans women can be vilification if they meet this test. Generally, we do not think that referring to a trans woman as a man will necessarily do so.”

An example of what the tribunal found to be actual vilification: “How ridiculous that u have to lie and pander to these anti-women delusional haters. The good thing is that everyone knows that Bridget is a man no matter what he dictates, people call him. Even the anti-women men and handmaidens know he’s a man. We can laugh at how pathetic he is and know he’s angry that no one actually believes his delusions – the only reason he’s being supported is because he’s helping support men’s misogynistic views and desperate attempts to control women.”

The Tribunal found that this was vilification: “In our view, this statement moves beyond being just offensive and insulting, to strong and abusive language. It refers to [the respondent] as anti-women, delusional, a hater, a man, who dictates to others, is laughable, pathetic, angry, delusional, misogynistic and controlling of women. … This is incitement of, revulsion of, or severe ridicule of, a person and the group of trans women. It is not reasonable, that is a rational or proportionate discussion of transgender issues…”

Foster comments that the tribunal’s approach is a good one. “The overall conclusion of the proceedings will not satisfy everyone. Some things that are viewed as insulting or offensive are not prohibited. Some things that others will see as true and a legitimate part of robust debate on the area are seen as vilification. But overall, the decision moves the discussion in a helpful direction by noting that the actual words of the prohibition need careful attention and that where issues are discussed in a rational and moderate way, this will not amount to “inciting hatred”, etc.”

Eternity believes that neither of the examples cited would be acceptable if submitted as comments on our Facebook page. We do want these issues discussed. But we don’t think it is necessary to seek to provoke those you disagree with. Please, Eternity commenters, take note.